Dismissed

Seema Lanke @ Seema Kuktaji Nitnaware and Ors. v. the State of Maharashtra and Anr.

Bombay HC21 Mar 2013WP/3793/2011

Case brief

AI extract

What is this about?

The High Court held that a Sessions Judge cannot add accused based solely on the chargesheet under Section 319 CrPC. The power can be exercised only upon evidence adduced during trial after cross-examination, not while considering the chargesheet.

What did the court decide?

Impugned order allowing addition of accused is set aside; case remanded for framing of charge; evidence led in trial may lead to addition of accused under Section 319 CrPC.

Seema Lanke @ Seema Kuktaji Nitnaware and Ors. Vs the State of Maharashtra and Anr. — Bombay HC (2013) — LawSathi Research

Cr.W.P.No.3793_2011

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO.3793 OF 2011

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Seema Lanke @ Seema Muktaji Nitnaware & Ors. – Petitioners V/s.

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The State of Maharashtra & Anr. – Respondents.

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Mr. Vikas Shivarkar, Adv. for the Petitioners. Priyan G. Sarda, Adv. for the Respondent No.2. Smt. A. A. Mane, APP for the State.

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CORAM : MRS. ROSHAN DALVI, J. DATE : 21th March, 2013.

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P.C. :-

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The only question of law which comes up for consideration is whether the learned Sessions Judge can add any accused to the list of accused in the chargesheet upon certain facts which may come to his notice under the chargesheet as evidence before him after the case is committed to the Sessions Court by the learned Magistrate.

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In this case a complaint came to be filed for offences U/s. 307, 362 and 504 r/w.34 of the IPC. The crime came to be registered against accused persons by the statement of the complainant. The complainant was hospitalised. The complainant made a supplementary statement after his discharge from the hospital. He further stated that the offence committed by accused persons were on the say of the applicant herein. It was contended by him that since the offence was committed in conspiracy by accused Nos.1 and 2 with the applicant being the third person mentioned in his complaint and his supplementary statement the offence be registered against the

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applicant herein also. The learned Judge has considered the complaint and the supplementary statement and issued process, but after the case was committed to him by the Magistrate.

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This question of law has been discussed in the affirmative in the case of Subhash Chander Vs. The State, 1990 CRI L J 1217 in which the Single Judge of the Delhi High Court, upon the noble premise of expediting trials, concluded that whatever was the evidence collected during investigation was “evidence” within the meaning of Section 319 of the Criminal Procedure Code and would be considered by the Magistrate or the Sessions Court to try the accused not arrayed by the prosecution. In fact the learned Judge has passed strictures against the retired Additional Sessions Judge who, in consonance with the other more conservative approach, chose not to array such accused in the trial before in evidence against them was led in the court.

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The Delhi High Court relied upon three judgments to arrive at its decision.

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5. The case of Raghubans Dubey Vs. State of Bihar, AIR 1967 Supreme Court 1167, relied upon by the learned Delhi High Court Judge, was a case in which evidence had begun and P.W. 1 was cross examined who implicated one more person as the person present when the victim was killed.

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In the case of Hareram Satpathy Vs. Tikaram Agarwala & Ors. (1978) 4 Supreme Court Cases 58 , the Supreme Court dealt with the case in private complaint upon cognizance being taken under Section 190 of CrPC. The Supreme Court relied upon the earlier case of the Supreme Court itself of Smt. Nagawwa V. Veeranna Shivalingappa Konjalgi, 1964 1 SCR 639 : AIR 1963 SC 1430 : 1963 2 Cri L J 397 in which it observed that at the stage of issuing

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process, the Magistrate was concerned with all the allegations of the complainant and evidence before him. That observation in Paragraph 7 does not show that U/s.319 the Sessions Judge can commence proceedings against an accused who was not shown as such in the police report.

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Even the 3^rd case of Joginder Singh & Anr. Vs. State of Punjan and Anr., (1979) 1 Supreme Court Cases 345 was the case where evidence at the trial was recorded in the Court in which two other accused came to be implicated in the incident and they were rightly thereafter proceeded against U/s.319 of the CrPC.

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Much after the Delhi High Court Judgment are the cases of the Supreme Court specifically laying down the restrained and contained ambit of the action U/s.319. In the case of Lok Ram Vs. Nihal Singh & Anr., AIR 2006 Supreme Court 1892 as also in the case of Mohd Shafi Vs. Mohd. Rafiq & Anr., AIR 2007 SC 1899 and the latest case of Sarojaben A. Shah, Etc., Vs. State of Gujarat, 2011 DGLS, SOFT 691 the Supreme Court has laid down that the evidence to be considered was not the one which comes up in chargesheet but the evidence adduced before the Court. The satisfaction of the Magistrate or the Judge should be arrived at after evidence and more so after the cross examination of the such witness. All Courts may proceed suomoto or in the application of some one but only upon the evidence which comes up before the Court.

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In further cases the powers of the Magistrate and Sessions Judge are evaluated.

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In the case of Jitender Singh @ Motu & Ors. V. State Govt. of NCT of Delhi, 2003 CRI L J 2388 , the Delhi High Court considered the distinction between Section 190 and 319 of the CrPC with regard to the aspect of taking cognizance of an offence by the

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Magistrate and of proceedings against persons other than the accused who appeared to be guilty of any offence. In paragraph 8 the act of a Magistrate alone for taking the cognizance of the offence against any one is set out. It does not apply to a Sessions Judge. It applies at the first stage where the complaint is filed before the Magistrate. It may be private complaint or a complaint on police report or otherwise when the Magistrate receives information of any offence. At that stage the Magistrate may take cognizance against persons who are not arraigned in the complaint or the police report also. That is not the function of a Sessions Judge. The Sessions Judge can take cognizance of a complaint of offence only after committal of the case under Section 193 of the CrPC to which my attention has been specifically drawn by the Advocate for Respondent No.2. The Sessions Judge would frame the charge upon the case being committed to him / her and then record evidence. That would be the stage of inquiry and trial. Hence the Sessions Judge would not be concerned with Section 190 of the CrPC; he / she would be concerned only with Section 319. The parameters of Section 319 are as led down by Supreme Court Judgments (supra). 11. Even in the case of Vimla Devi & Ors. Vs. State of Rajasthan, 1988 DGLS (Cri) Soft 550 , the distinction between the aforesaid sections has been set out. They are held to be patently distinct, different and distinguishable and occupying their separate fields which do not overlap. Considering earlier cases including the judgments of the Rajasthan High Court which were overruled by the case of Sheoram Singh in which the this distinction has been made out, it was observed that Sheroam Singh's case was for trial before the Sessions Court and not of the stage of taking cognizance or issuing process against the accused. The Magistrate's power of issuing

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process even against the accused who were not arraigned was observed if he / she found sufficient ground to proceed against such person. This is not the case here.

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Hence there is a subtle distinction between what a Magistrate can do while taking cognizance of a case under Section 190 of CrPC and what a Sessions Judge can do after the case is committed before Sessions Court upon the chargesheet being filed. The Magistrate can take cognizance of any offence by any offendor even if the complaint or the police report does not arraign an accused upon any fact which comes to his notice. Once that is done, and the accused are specified, further accused can be arraigned only after further evidence is led in Court. Hence the Sessions Judge can exercise that power only under Section 319 of the CrPC which can be not upon the chargesheet but only upon evidence led in Court. 13. Consequently the impugned order of the learned District Judge-12 and Additional Sessions Judge, Pune dated 30^th September, 2011 allowing the application of adding accused mentioned in supplementary statement of the complainant and issuing process against such accused is required to be interfered with. 14. The impugned order is set aside. The learned Judge shall frame the charge and proceed to trial in accordance with law. So soon as any evidence is led before in the trial which might implicate the Petitioners herein, the learned Judge may proceed against such person in consonance with Section 319 of the CrPC and the Judgments of Supreme Court ( Supra ).

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( ROSHAN DALVI, J.)

Seema Lanke @ Seema Kuktaji Nitnaware and Ors. v. the State of Maharashtra and Anr.

Case brief

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Seema Lanke @ Seema Kuktaji Nitnaware and Ors. v. the State of Maharashtra and Anr.

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